with the kind of charismatic qualities that play so well on television, it would become even more important. Senator SCOTT. The point I am really getting at, Doctor, in asking your views, is this. We see these large metropolitan areas with their vast populations. The State of Utah is an example; it is not in any of these first five. I have not looked all the way through. There are 119. I suppose Salt Lake City is somewhere in there, but it would be way down the line. Whether we are talking about television or newspapers, would not a candidate for President be likely to concentrate more on the large metropolitan areas if we had direct election of President than he would under our present system, where each State has electoral votes that would be counted one way or another? Ms. BEST. Yes, I think that is true, Senator. I would add this to it. Under the direct election proposal, because the State rule no longer would apply, a candidate would be free to carve out his own constituency across State lines and so, for example, would appeal to the eastern megalopolis and make tremendous media blitzes there. In other words, because a candidate would no longer have to win States, he would be free to form entirely new coalitions. Much of what is said about the direct election plan is speculation simply because we have not experienced it and we do not know what it would be like. But the fact remains that, when a candidate does not have to win States, he can build new coalitions, coalitions that he carves out across State lines. Another complicating factor would be probably the atrophying of the electioneering muscles of the State parties which might not become major campaign apparatus. We might have a situation wherein now privatized groups became the main electioneering muscle of candidates Senator SCOTT. What became the main? Ms. BEST. Electioneering, campaigning candidacy, bringing out the vote. In other words, it strikes me that one of the disadvantages of the direct election plan is that it could affect the State party system itself and the State party officials to whom the candidates now look for help and assistance. These State party officials would lose a great deal of power. Senator SCOTT. Would you say that the two-party system generally would be strengthened or weakened by the direct election? MS. BEST. I think it would be greatly weakened by the direct election. Senator SCOTT. Why? MS. BEST. For one thing, the direct election amendment would abolish the unit rule, which has a bias against all third-party candidates, against multi-factionalism, against multi-party systems. So, it would abolish the unit rule, which is a support for the twoparty system. Second, it would introduce a run-off election system, which has tremendous potential for multifactionalism and for disorganized and individualized politics. So, there would be an incentive built in for the entrance of many candidates. Senator SCOTT. Dr. Best, would the direct election system eliminate bias? Ms. BEST. No, Senator. I think the direct election system has a large number of biases. Again, I mention simply the fact that the direct election system, in my judgment, has a bias against the two-party system. I think it has a bias against a single election. I think it has a bias in favor of the imperial Presidency I think it has a bias against federalism. I think it has a bias against moderate candidates and parties. Senator Scorr. Dr. Best, there are many questions. I have a lot listed here that I would like to get you to respond to; but time will just not permit us to explore your mind further. We do have another witness today. I want to thank you very much for being here and responding as candidly as you have to our questions. The presentation that you made certainly will be valuable to us in our deliberations. Thank you very much. MS. BEST. Thank you very much. Mr. ACKERSON. Senator Scott and Ms. Best, if I may, Senator Bayh asked me if I would ask a few followup questions. I will be extremely brief. Senator SCOTT. We certinly want counsel to do this, but I would ask him to be brief. I have to be at a meeting very shortly. Go ahead. Mr. ACKERSON. I will try to follow that directive, Senator, and be extremely brief. You have listed, Ms. Best, a number of what you call biases. I do not think there is time to go into the foundation you may have for your beliefs about all of those biases. You stated about 20 or so biases that you believe the electoral college and the direct election have. Unfortunately, we cannot explore them all. In one instance at least, it seems to me that there is a fairly sharp inconsistency. I do want to explore that. You have mentioned that you believe the electoral college has a bias in favor of urban and suburban areas. Yet, in response to a question by Senator Scott, you were saying that you thought it also favored rural areas. Now, it cannot have a bias in favor of all three; can it? Ms. BEST. My response to Senator Scott was that I was concerned about rural areas and that I believe that the electoral college system is a valuable system because it requires a broad crosssectional support. I would argue and I think it is quite true that the electoral college system has a bias in favor of large, competitive two-party States and well-organized minorities in urban and subburban sections in those States. I would argue further that these then become the major campaign battlegrounds. I think that these are the most appropriate ones because such States represent the Nation in its diversity. Thus, they do represent rural areas. But they represent urban and suburban areas as well. Mr. ACKERSON. But, as Senator Dole was testifying, under the present system you would agree that there is not much incentive to go to the rural small States under the electoral college system. MS. BEST. I agree with that. Mr. ACKERSON. Nor to concentrate on issues of those States? that there is not much incentive to campaign in such States. I do not believe that the direct election proposal would change that. I do think, however, that, because the unit rule requires statewide victory, State issues are still important to the candidates, whereas I doubt that they would be important to the candidates under a direct election plan since one does not have to consider the States as a geographical or governmental unit under that plan. Mr. ACKERSON. I would like to explore that area further and also ask other questions, but I do not think we have the time. Senator Scorr. I think we might ask Dr. Best to submit responses to questions we might have in writing, if she would be agreeable. MS. BEST. I would be willing to do so. Mr. ACKERSON. Senator, I think there are large areas we might get into. I appreciate that we were able to cover some of them. Unfortunately, we cannot ask as much as we would like. We appreciate, once again, your being here. Thank you. [The prepared statement and exhibits submitted by Ms. Best follow :] PREPARED Statement oF JUDITH A. BEST THE CASE FOR THE ELECTORAL COLLEGE1 The case for the electoral college system is that it is compatible with and supportive of the American idea of democracy, and that it is an integral part of our "solar system of governmental power." The distinctive element of the electoral college system is the federal unit rule principle not the office of presidential elector. This system emerged in 1832 at the same time as the national party nominating convention system. The American idea of democracy is complex not simple, federal not all-national, consensual not strictly majoritarian. It was designed to balance two frequently incompatible things: liberty and equality. The organizing principle of the American system of government is the principle of the concurrent majority under which coalition-building and compromise create broad crosssectional majorities that provide moderate government and are resistant to tyranny. The electoral college system has a bias in favor of: (1) the winner of a bias against: (1) sectional candidacies, (2) contingency elections, (3) third tem, (4) large, competitive two-party states and well organized or selfconscious minorities in urban-suburban areas within such states, (5) ideologically moderate candidates and parties, and (6) electoral certainty. It has a favors certain groups and interests and discriminates against others. Thereparties, (4) homogeneous regions and one-party states, (5) ideologically extremist candidates and parties, and (6) the premium on fraud. These biases of the electoral college flow directly from the federal unit rule principle. Critics of this system are too prone to indulge in games of mathematical speculation and to ignore the political and historical realities. They have yet to make the case against federalism and the principle of the concurrent majority. If and when they do, we must consider a complete revision in our system of government, including the Senate, the Supreme Court, the Amending Procedure and, indeed, the Constitution itself. The following case for the electoral college system is not a case for the system established by the Founders in the Constitution. Contrary to the usual understanding, the date of the emergence of our current presidential election system is approximately 1832 not 1789. The original system devised by the Founders not only did not work as they had intended but was a mere embryo of the system as we know it today. The distinctive element of the electoral college system is the unit rule, according to which the popular votes for President are aggregated under a federal principle that awards all of a state's electoral votes to the candidate who wins a statewide popular plurality. 1 Prepared for delivery at the 1977 Annual Meeting of The American Political Science Association, The Washington Hilton Hotel, Washington, D.C., September 1-4, 1977. Copyright by The American Political Science Association, 1977. The Constitution left it to the states to decide how their presidential electors would be selected. As a result, a diversity of methods were employed during the first eleven presidential elections. As late as 1828, one fourth of the states did not use the unit rule. In 1828, Maine, Maryland, New York and Tennessee used the district method of aggregating popular votes and in Delaware and South Carolina the electors were chosen by the state legislature. By 1832, all but two states had adopted the unit rule; Maryland used the district system and in South Carolina the electors were chosen by the legislature. 1832 was the year when the system assumed its peculiar, characteristic form. The essential component of the electoral college system is the unit rule and not the office of presidential elector. Faithless electors make headlines and arouse our moral indignation, but they have had no practical effect on any election. More than 17,000 electoral votes have been cast since the founding, and less than 10 of them can be called faithless or miscast. If the office of elector alone were abolished, the system as we know it would not be altered. Whether there remains some potential utility in this office or not, whether the benefits of eliminating the office of elector justify the effort to pass a constitutional amendment are minor, indeed, side issues. The intrinsic character of the electoral college system is derived from the unit rule and not from the theoretical independence of electors. The actual, the paramount question about the electoral college system is whether the popular vote for President should be aggregated under the federal unit rule principle. No electoral system is neutral. Every electoral system, as a practical matter, favors certain groups and interests and discriminates against others. Therefore, the issue is not whether the electoral college has biases, but rather whether the biases of the electoral college are compatible with and supportive of the American idea of democracy, whether the electoral college is an integral part of our system of government. As Senator John Kennedy put it, when he and Senator Paul Douglas led the fight against a proposal to change the system, "it is not only the unit vote for the Presidency we are talking about, but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider the others." 4 What, then, is this "solar system", what is the American idea of democracy? It is, has been, and was intended to be a system of concurrent majorities designed to balance two very high but frequently incompatible things-liberty and equality. We are not, have never been and were not intended to be a simple majoritarian democracy, the regime whose dedication to equality is so singleminded that it will readily sacrifice liberty to achieve its goal. No attentive reader of the Constitution or of the Federalist Papers can fail to recognize the Founder's overwhelming fear of majority faction, of majority tyranny. Their fear, however, was moderated by hope, the hope that a solution had been found, a remedy discovered that would allow men to enjoy both liberty and equality. That solution was a large heterogeneous society governed by majorities created by coalition-building within the framework of a federal system. The solution was a system that divided and redivided power, that set interest against interest, ambition against ambition; a system that could operate only through compromise, negotiation, bargaining and accommodation. Diversity and division of power would safeguard liberty in a democratic regime. Coalition-building and compromise would create cross-sectional moderate majorities that can satisfy the egalitarian principle of democratic regimes as well as govern. The American idea of democracy is not the populistic principle of the unlimited sovereignty of the majority, and particularly not of the unlimited sovereignty of all-national majorities. The unlimited, unrestrained, unqualified exercise of power by the one, or the few, and yes even by the many is, according to the American principle of democracy, the very essence of tyranny. Our "solar system of governmental power" is filled with devices or intermediary institutions to protect minorities, to prevent the formation of all-national majorities and to limit the power of ordinary majorities. To mention 2 Neal R. Pierce, The People's President: The Electoral College in American History and the Direct Vote Alternative (New York, 1968), pp. 310-311. For comment regarding elector utility see: Wallace S. Sayre and Judith H. Parris, Voting For President: The Electoral College and the American Political System (Washington, 1972), p. 149; and Judith Best, The Case Against Direct Election of the President: A Defense of the Electoral College (Ithaca, N.Y., 1975), pp. 188-190. Congressional Record, Vol. 102, Pt. 4, 84th Cong., 2d sess. (1956), p. 5150. just five of the most obvious and important ones, there are the Constitution itself, the amendment procedure, the Supreme Court of the United States, the United States Senate and, of course, the electoral college system. All of these directly or indirectly incorporate the federal principle, impose a federalgeographic limitation on the exercise of governmental power. None of these institutions and procedures operates simply under the principle of one citizen, one equally weighted direct vote. One third of the power of the national government, that lodged in the most powerful court of law the world has ever known, is exercised by nine men who are neither selected by nor subject to removal by the direct popular votes of the people. One half of the legislative power of the national government is exercised by one hundred men who are selected by the people under the constitutional principle of the constant two. This principle means that the voters in the least populous state have the same number of Senators as the voters in the most populous state. If equity lies in numbers alone, the Senate is a severe anomaly in a democratic republic. But the American idea of democracy is not the idea of a simple doctrinaire majoritarianism. It is not government by adding machine. And this, because the size of the popular vote, whether a plurality or a simple majority, does not suffice to maintain free government, because the distribution of the popular vote is an essential support for moderate and free government, because the intensity of preferences must be considered along with the number of preferences, because equality is not the only goal of the regime. If, then, the principle of the concurrent majority is the organizing principle of our solar system of governmental power and if the American idea of democracy is a balancing of liberty and equality, are the biases of the electoral college system compatible with and supportive of this system, this idea? As it actually operates, the electoral college system has a significant number of biases. It has a bias in favor of: (1) the winner of a cross-sectional popular plurality, (2) a single election, (3) the two-party system, (4) large, competitive two-party states and well organized or self-conscious minorities in urban-suburban areas in such states, (5) ideologically moderate candidates and parties, and (6) electoral certainty. It has a bias against: (1) sectional candidacies, (2) contingency elections, (3) third parties, (4) homogeneous regions and one-party states, (5) ideologically extremist candidates and parties, and (6) the premium on fraud. These biases must be closely examined to determine how they operate and interact. The presidential election system is a two stage election in which popular votes are converted into electoral votes under a federal principle. In the 1976 general election, Jimmy Carter won with 50.5 percent of the vote for a margin of 2.1 percent over Gerald Ford. When these votes were aggregated in the second stage under the federal unit rule principle, Carter won 297 electoral votes or 55 percent of the total. Thus. Carter won a higher percentage of the electoral vote than of the popular vote. There was nothing unusual about this disparity. It occurs time and again. Its political significance is that it reinforces the plurality penchant of the college. The system is essentially a plurality system that magnifies the national plurality winner's margin of victory in the electoral vote. Because the unit rule awards 100 percent of a state's electoral vote to the candidate who achieves a statewide plurality, the President-Elect will receive a higher percentage of the electoral vote than he has won in the popular vote. In the thirty-six elections held since 1832, the average increase in the national plurality winner's margin in the electoral votes is 19.3 percent. In every election but one, the multiplier effect of the unit rule worked to the advantage of the undisputed winner of the popular plurality. This does not mean that the multiplier effect gives the plurality candidate a greater mandate. The electorate largely misses the fact of the electoral college, and election analysts know full well that the mutiplier effect is artificial. that the real mandate is derived from the popular vote. What this multiplier effect does mean is that the system is biased in favor of the winner of the national popular plurality, and that it makes a contingency election highly improbable. There is but one addendum to this bias of the electoral college system, but one exception to the advantage given to the plurality winner: the bias against a purely or predominantly sectional candidacy. A candidate whose appeal is sectional and not cross-sectional, a candidate whose popular vote support is geographically narrow and deep loses the advantage of the multiplier effect. |